Sunday, January 15, 2006

Freedom of Religion|Church and State

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;..."

Together with the 14th Amendment, the Freedom of Religion is established in the U.S.A. by the Second Amendment of our Constitution

The two camps, both liberal and conservative, tend to only recognize the virtue of half this clause from the Second Amendment of the U.S. Constitution. Liberals tend to only accept the first half of the clause. Conservatives tend to only recognize the second half. Yet, Freedom of Religion can only be guaranteed if both halves are equally recognized.

The first half limits government from enforcing religion upon the populous. This means schools cannot institutionalize prayer. They cannot teach religion in any context except where religion itself is objectively studied in terms of history or social science. It means judges, states and any government institutions cannot promote religion, use it in their proceedings or refer to it in its decision making process. It also means that government cannot give preferential treatment to particular religious organizations. That is to say, it’s ok to give all religious organization a tax-exempt status, but it’s not ok to actually give money to particular groups without using some non-religious common criteria.

On the flip side, the other half of the Freedom of Religion clause prevents our governments from stopping someone from practicing their religion. This means that a school cannot tell a student that they cannot pray during school hours. It means that religions that are in the extreme minority may not be transgressed upon for their practices. Now, reason had intervened with the understanding of this clause. If a religion advocates harming others or their property, this is not protected religion activities. What is protected is what the individual does themself with their own property or within their own life, as long as they are not harming others.

An example of both ends of the second half of the Freedom of Religion clause have been tested out in the litigation involving Jehovah’s Witnesses. Jehovah’s Witnesses fought for the right to practice their religion within schools. Through the Supreme Court, they have won the right to not salute the flag at school. However, they have also been required to prevent unnecessary harm to their children by being forced to all medical care that involves blood transfusions. As part of their religion, they believe that seeking professional medical care is valuable and important, but have a specific prohibition again the practice of using blood transfusions.

So, the Second Amendment doesn’t allow the government to promote religion, and it does not allow the government from preventing it either. This leads to the contemporary discussion regarding the concept of the separation of church and state. The words “separation of church and state” do not appear in the Second Amendment. Nor do they need to in order to establish such a separation because the words actually used in the Second Amendment establish the even greater and more inclusive principal of Freedom of Religion. Freedom of Religion inherently establishes a de facto separation of church and state, not as a doctrine itself, but as the only practical way to apply the Freedom of Religion principle with the actual wording of the Second Amendment.

Again, the Second Amendment (together with the 14th Amendment) prevents the U.S.A. governments (local, state and national) from promoting, imposing or prohibiting religion on/of its citizens, which creates a de facto separation of church and state.